FAQs

Custody and Visitation — Frequently Asked Questions

Q: If we have joint legal custody, do we have to agree on every decision?

A: No. With joint legal custody both parents have the right to make decisions and either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.

Q: If we have joint physical custody, do our children have to spend exactly half the time with each of the parents?

A: No. If there is joint physical custody, usually the children spend a little more time with 1 parent than the other because it is too hard to split the time exactly in half. When 1 parent has the child more than half of the time, then that parent is sometimes called the “primary custodial parent.”

Q: I do not want my child to change houses every day. But I want to see my child as much as possible. What is the best schedule?

A: We do not know how long young children can go without seeing either parent, how many transitions children can handle, or how long children should stay in each household. We do know that children can get attached to caregivers when they have good relationships that are consistent over time.

In many instances, it may make sense for infants and toddlers to be able to see each parent regularly, especially if a child is safe with either parent. Younger children’s concept of time is different from that of older children, and they often need more consistency. It is generally a good idea to have a regular schedule and stick to it. Most children benefit from having a routine they can count on.

When you make a schedule, think about the quality of the relationships. Not just the relationship between the children and each parent, but also between the parents and between the children and any other caregivers.

Q: What if the child is not feeling well when it is time to change homes?

A: It is hard when a child is not feeling well. If it is time for the child to go from 1 home to another, should the change be put off? Unfortunately, there are no easy answers to this question. Clearly, the age of the child and the seriousness of the illness need to be taken into account. Also, the distance between the 2 homes will be a major factor in decision making. Some parents use the standard that if the child is well enough to go to school, he or she is well enough to move from 1 home to another. However, deciding whether the child should go to school or not is often difficult, so that standard is not too helpful.

Here are some considerations:

Both parents have not just the right, but an obligation to care for a child while the child is ill. It is unreasonable to expect the primary custodial parent to take over all care of a sick child, just as it is unreasonable to deny parenting time due to minor illnesses.

The child’s feelings count. It is typical for a sick child to be cranky and unhappy; moving him or her to the other home may only intensify these feelings. On the other hand, children are prone to “cabin fever” just like adults. A change of environment may very well make a child feel better and help take his or her mind off their illness.

When parents share care of an ill child, clear communication is crucial. If the child is on any kind of medication, knowing when the child took his or her last dose or when the next dose should be given is important information that parents should convey when exchanging the child. Both parents may want to keep a simple log of what medication the child is taking and what the medication schedule is.

If parenting time is missed due to sickness, the noncustodial parent probably may want to make the time up. Reasonable “illness contingencies” may be written into every parenting plan to provide guidance for these situations. When adding these contingencies to your parenting plan, you need to take into account that each parent’s situation (travel, work schedules, etc.) is different.

Q: What happens if I do not respond to the papers I received asking for a custody and visitation order?

A: If you do not respond, you should still show up at the court hearing. Or if there is a mediation scheduled before your court hearing, make sure you go to the mediation. If you go to the hearing without filing a response, you may be able to ask for more time to file a response and explain to the judge the reason why you were not able to file a response in time.

Q: How long does mediation take?

A: Court-ordered child custody mediation sessions can last for different amounts of time in each court. Some courts are only able to offer parents 1-hour appointments. Others can work with parents during 1 or more appointments that last 2 to 3 hours each. Because each court has different resources available to help parents, this is an important question to ask when you set up your mediation appointment.

If you want more time with a mediator, you can contact a mediator in the community who can spend more time. Private mediators often work with parents for 4 to 6 hours over the course of 1 or more appointments. Working with a private mediator will cost you money, but it can be a valuable way to resolve your differences and work out a parenting plan that will support your children and work well for your family’s situation.

Q: Can children, relatives, lawyers, or others be part of the mediation?

A: Court-ordered child custody mediation is generally for parents only. Two important exceptions to this basic rule are:

Meeting separately and domestic violence support personsIf there is a restraining order or a history of domestic violence, or if you are concerned about meeting jointly, you can ask the mediator to meet with you and the other parent at separate times. You can also ask to have a domestic violence support person go to mediation with you.

InterpretersIf 1 or both parents are not comfortable mediating in spoken English, then they may ask to bring an interpreter to mediation. Although some courts may be able to offer trained interpreters to parties during mediation, most cannot. For this reason, it is VERY important to know that it is NOT a good idea to have your children serve as your interpreter in mediation. It is also important that the person you bring to interpret for you in mediation must be ready to translate everything that is said by everyone, as closely as possible, without adding new information or his or her own comments in the process. If you do not know how to find a trained interpreter, you can ask the mediator to help you. You will be responsible to pay any costs associated with hiring an interpreter to help you during mediation.

Also, in some cases, mediators may want to interview your children. Ask your mediator what they do in your court.

Q: What happens in mediation if 1 or both of us have lawyers?

A: Mediation can still happen, and in some cases, the lawyer will participate with you and the mediator. You and your lawyer can talk with the mediator about this. But you and your lawyer need to decide if your lawyer will go to the mediation, and then be sure to tell the mediator and other parent whether the lawyer will be coming. Some courts may not allow your lawyer in the mediation, so ask your mediator about the rules in your court.

It could be very helpful to you to get legal advice before or after the mediation. It will help you understand your legal rights and responsibilities and develop options for reaching an agreement. So even if you are representing yourself in the court case, consider talking with a lawyer about the issues and the possible agreements you are reaching in mediation.

Q: What is the difference between an agreement we both write up and sign and a court order or judgment?

A: A written agreement signed by 2 or more parties becomes a binding, enforceable agreement. However, a court cannot enforce such an agreement until it has become an order of the court called a “judgment.” A court may create a judgment by merging and incorporating the provisions of the agreement into the judgment. The judgment then replaces the agreement and can be enforced by the court if either side violates it.

Q: How do I complain about my mediator or the evaluator?

A: First, if you have a complaint against a mediator or evaluator with Family Court Services, talk to the director of Family Court Services to find out how to make a complaint. Follow the procedures for filing a complaint in your court. If you are not happy with the result after you file the complaint, you can explain your complaint to the judge at the time of your hearing. Click to find the Family Court Services program in your court.

Many mediators are licensed professionals. If your complaint is about ethical conduct or licensing issues, or if you believe the court did not deal with your complaint appropriately, there are state licensing boards that address complaints about licensed professionals:

A: The law on these types of cases is very complicated and changing. You should talk to a lawyer if you want to move away with your children or if you are worried that the other parent will move away with your children. For help finding a lawyer.

Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children, unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.

If the parents have joint physical custody of the children and 1 parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.

Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.

If you are worried that the other parent may want to move away with your children, or if you think you may want to move away with the children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

Q: How can I stay close to my children if they move away with the other parent?

A: You can make a parenting plan that takes into consideration that your children are moving away and changes the visitation so that you can still have quality time with your children. Find more information about parenting plans.

Also, thanks to the Internet, there are other ways for you to stay connected to your children, not just e-mail. There is something called “virtual visitation” that helps you have “visits” with your children through web-based and camera-computer technology. Find more information on virtual visitation.

Q: What happens if I want to travel out of state or the country with my children but I cannot find the other parent to get permission?

A: Usually, you need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.

You should also closely look at your existing custody and visitation court order and make sure that there are no restrictions on you leaving the state or your country with the children. If there are limits on whether you can take your children outside of your country or state, you usually need a court order giving you special permission to travel.

If the judge gives you an order letting you travel, make sure you get it in writing. Also make sure the order has everything you need, including the dates of travel and any other information so that you can travel with your children safely. Carry a copy of the order on you everywhere you go when you travel. You may need to show it to the border patrol, airport staff, or any official that asks to see it.

Q: What if the parents live in different states?

A: If you and the other parent live in different states and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.

All states of the United States and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets standards for when a court may make a custody decision and when a court must accept an existing decision from another state.In general, a state may make a custody decision about a child if 1 of the following is true:

The state is the child’s “home” state. This means the child has lived in the state for the last 6 months, or was living in the state but is not there because a parent took the child or kept him or her out of the state.

The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child’s care, protection, training, and personal relationships are based there.

The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.

No other state can meet 1 of the 3 tests listed above, or a state can meet at least 1 of the tests but has declined to make a custody decision.

A custody decision can only be made in 1 state. Once the first state makes a custody decision, another state cannot make another “initial” decision or modify the existing order.

Having the same law in all states helps achieve consistency in the treatment of custody decisions. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.

Q: What if the parents live in different countries?

A: If you and the other parent live in different countries and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.

Q: Can a parent move away with the children without permission from the other parent?

A: The law on these types of cases is very complicated and changing. You should talk to a lawyer if you are worried that the other parent will move away with your children. For help finding a lawyer.

Generally, a parent who has a permanent order for sole physical custody (also called “primary physical custody”) can move away with the children, unless the other parent can show that the move would harm the children. But it is not always clear whether a custody order is permanent or temporary, so what the law requires may be different in your case. Talk to a lawyer to make sure you understand how the law applies to your specific circumstances.

If the parents have joint physical custody of the children and 1 parent does not want the children to move, the parent that wants to move with the children must show the court that the move is in the best interest of the children.

Keep in mind that, although the physical custody label (“joint” or “sole”) you agree to in your parenting agreement is important, if there is a dispute, the court will usually look at the actual parenting schedule at the time of the move, rather than rely on the schedule the parents put in their parenting agreement.

If you are worried that the other parent may want to move away with your children, talk to a lawyer before you make a parenting plan to make sure your plan protects your rights as much as possible.

Q: I am worried the other parent may kidnap my child. What can I do?

A: The U.S. Department of State has a list of precautions that any parent should take if they are worried about the possibility of child abduction:

Keep a list of the addresses and telephone numbers of the other parent’s relatives, friends, and business associates both here and abroad;

Keep a record of important information about the other parent, including physical description; passport, social security, bank account, and driver’s license numbers; and vehicle description and plate number;

Keep a written description of your children, including hair and eye color, height, weight, fingerprints, and any special physical characteristics; and

Take full-face color photographs or videos of your children every 6 months — a recent photo of the other parent may also be useful. If your children are abducted, this information could be vital in locating them.

In addition, the National Center for Missing and Exploited Children, at telephone number 1-800-843-5678, suggests that you teach your children to use the telephone, memorize your home phone number, and practice making collect calls, and that you instruct them to call home immediately if anything unusual happens. Discuss possible plans of action with your children in the case of abduction.

Most important, if you feel your children are vulnerable to abduction, talk to a lawyer for legal advice. Do not just tell a friend or relative about your fears.

Q: The other parent kidnapped our child and left the country. What can I do?

A: When a child who is a U.S. citizen is kidnapped and taken to another country, the State Department’s Office of Children’s Issues works with U.S. embassies and consulates throughout the world to help the child and the parent looking for the child. But even when a child is taken across international borders, child custody disputes are private legal matters between the parents, and the State Department has little or no power.

If your child is at risk of being abducted by the other parent, it is very important that you have a clear custody order that specifies what the other parent can and cannot do in terms of traveling with your child. But even if you have a court order, U.S. laws and court orders are not usually recognized in foreign countries and therefore are not directly enforceable abroad.

Fortunately, the Hague Convention, which has been signed by many countries, is an international treaty that applies to child abductions. The countries that are parties to the convention have agreed that, with a few exceptions, a child who is a resident in 1 country that is a party to the convention and who is removed to another country that is also a party to the convention against a custody and visitation order must be promptly returned to the country of residence. Click for information on which countries have signed this agreement.

The Hague Convention and cases of international abduction are very complicated. There is information online to help you, but if you can, talk to a lawyer who has a lot of experience with international abduction cases. Your local District Attorney’s Office may also have a Child Abduction and Recovery Unit that can help you or give you resources in your area.

Here are some websites with very helpful and complete information on child abduction:

The U.S. Department of State’s Office of Children’s Issues websiteProvides information about international abduction. This site provides information on how to look for a child abroad, how to use the criminal justice system, and how to invoke the Hague Convention by submitting abduction applications, as well as information about the law.

A Family Resource Guide on International Parental KidnappingA guide from the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice, provides detailed information on prevention and searching for your child, checklists for what to do in case of kidnapping, resources, and much more.

Q: Are my court records public?

A: For most cases, yes. All court files, including any orders of the court, become public records, meaning they are not private. Any person can go to the clerk of the court and request to see any case file. There are 3 types of exceptions. One is when the type of case itself is confidential, like a juvenile case or an adoption. Those cases are confidential and the general public does not have access to them.

Another exception is the confidential portion of a family law file. That is where child custody evaluations and recommendations are kept and only certain people are allowed access (including parties and their lawyers).

The third exception is when the parties request (and the court grants) an order that a certain document or a file be sealed or remain confidential. Then, only the court, the parties, and the parties’ lawyers may view that document. Requests for sealing may be made for documents or files that contain highly sensitive or financial information of the parties.

If you are not sure if your court case, documents, or file are confidential, ask the court clerk.

Q: Is child support related to custody and visitation?

A: A child support order is separate from a child custody and visitation order. So you cannot refuse to let the other parent see the children just because he or she is not paying the child support he or she owes. And you cannot refuse to pay child support just because the other parent is not letting you see your children.

But child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support. Click for more information about child support.

Q: We are a gay/lesbian couple. Where can we find information about children of same-sex parents?

A: You can find information on the Internet and through some community organizations on issues specific to children of gay and lesbian couples.Here are some resources:

A: If you need access to more affordable health insurance for your child or children, contact Covered California. Covered Californiacan help reduce the cost you pay towards high quality affordable health care for yourself and members of your family. For more information visit www.coveredca.com or call 1-800-300-1506.

Child Support—Frequently Asked Questions

Q: How do I find out if the local child support agency (LCSA) is involved in my case?

A: LCSA is involved in your case:

If you or the other parent receives welfare (like TANF) for your children, then the LCSA is involved in your case.

If you have asked the LCSA to help enforce your child support order, then the LCSA is involved.

If you still cannot tell, look at any paperwork you have received to see if you find any letters from the LCSA.

A: The local child support agency always gets involved in cases where 1 of the parents is getting public assistance for the child or the child is in foster care. So if you or the other parent of your child is getting some kind of welfare for your child, the LCSA will get involved.

You can also get the help of the LCSA to get child support even if you are not on public assistance. If neither you nor the other parent is on public assistance but the LCSA is involved, it is probable that the other parent went to the LCSA to get help with child support.

Q: Is the local child support agency lawyer my lawyer?

A: No. The LCSA does not represent the parents or the children. The LCSA lawyers are not your lawyers. You are not a legal client, and the information you give the LCSA is not confidential.

Also, LCSA lawyers can give certain information about your case to other agencies, the other parent, or the other parent’s employer or lawyer.

Parents have the right to get advice from a private lawyer or legal aid agency at any time. You can also get legal information and help from the family law facilitator at your court.

Q: It is taking a long time for the local child support agency to act on my request to get or change child support. What can I do?

A: The local child support agency has a lot of cases. They try to process their cases in a way that is fair to everyone. You can speed up your case by filing your own motion to change support. If you need assistance preparing your motion, you can get assistance from the family law facilitator. The local child support agency will still be involved in your case.

You must have a case open in which to file a motion for child support. If you do not have such a case, you will have to start one.

To get a child support order or to change the amount of a child support order:

File papers with the court clerk;

Serve a copy of your papers on the local child support agency; and

Serve the other parent.

Q: Can we get help to work out a support agreement without going to court?

A: Yes. If you and the other parent are in agreement about the support, the family law facilitator can help you prepare your agreement to submit to the court.

If you need help to reach an agreement, mediation can help you solve disagreements about money issues, like spousal/partner and child support and property. In some counties the family law facilitator can provide some child support mediation services.

You can also hire a private mediator to help you agree about money AND parenting issues. But it is not required. Private mediators are usually lawyers or mental health professionals. They usually charge between $50 and $250 an hour. Usually both parties share this cost.

Q: We already have an order for child support, but I think the other parent’s income has changed since then. Should I just file a motion to go to court?

A: You should give a lot of thought to all the facts in your case before you decide to file a motion to change a child support order. The results can be different than what you expected.

For example, if you are the one paying support, the amount you pay may actually increase if the other parent's income went down. If you are the one getting support for the child, the support may go down if the other parent's income went down.

Q: How do I find out whether the other parent’s income has gone up or down?

A: If you have a judgment in your case (your divorce has been completed, or there is a judgment of paternity), you can have someone serve a Request for Production of an Income and Expense Declaration After Judgment (Form FL-396) on the other parent, along with an Income and Expense Declaration (Form FL-150).

The other parent who receives your Request must fill out the Income and Expense Declaration and return it to you within 30 days after it was served. At the same time, the other parent must also send a copy of his or her most recent state and federal tax returns. Please note that these forms (FL-396 and FL-150) must be served by someone who is not a party to your case and who is over the age of 18 years; you CANNOT serve the papers yourself.

Q: I had someone else send the other parent a "Request for Production of an Income and Expense Declaration After Judgment" and an "Income and Expense Declaration." I never received anything back at all. What can I do now?

A: If you have not received a response after 35 days, or if the Income and Expense Declaration does not have complete wage information, you can send the other parent's employer a Request for Income and Benefit Information from Employer (Form FL-397). You can set the date by which the employer must send you the information, but you must allow at least 15 days. You must also send a copy of this form to the other parent.

The employer and the other parent must be served by certified mail, with postage fully prepaid and return receipt requested. Or you can have Form FL-397 personally served on the employer and the other parent by someone who is not a party to your case and who is over the age of 18 years. Learn more about Service of Process.

Q: Do I still have to pay child support if I have 50/50 custody?

A: If you make more money than the other parent, you may still have to pay some child support or share costs such as employment-related child care or uninsured medical costs.

Q: Will the court consider that I have other children to support?

A: The court can give you credit for other child support orders that you are actually paying and for other children in your home that you support. The court usually does not give credit for stepchildren or grandchildren.

Q: Will I pay less child support if I have the children more often?

A: The amount of time that the children are with you is a factor in calculating child support. And, as a general rule, the more time you have your children, the less child support you will have to pay because you are spending more money to support that child when that child is in your home. The court considers the actual amount of time you spend with the child, not just what is ordered.

But the child support formula is complicated and it does not always work out this way. Other factors, like the other parent’s income and whether or not he or she receives public assistance, can end up making your child support the same (or even more) even if you have the children more often.

Q: What if my employer threatens to fire me because of a wage assignment?

A: It is illegal for any employer to discriminate, retaliate, or fire an employee because of the existence of a wage assignment. If you believe your employer is discriminating against you or let you go only because of the wage assignment, talk to a lawyer or your family law facilitator. Click for help finding a lawyer.

Q: The parent who is supposed to pay support is in jail. Do they still have to pay support?

A: Child support is based on the parent’s ability to pay. The law states that if a parent is in jail and has no money to pay support, he or she is eligible for a $0 child support order. However, if there was already a child support order in place, the incarcerated parent should take action to change the child support while he or she is in jail. If not, back child support will continue to grow and that person will have to pay the back support when released, plus interest.

A person who goes to jail should contact the local child support agency to modify the support order if they are involved in the case. If the LCSA is not involved, the person ordered to pay support should contact the family law facilitator for help stopping the support while incarcerated.

Q: How do I end child support?

A: In general, you have to file a request in court to end the child support. This request is called a motion. If you have a case with the local child support agency, you may be able to get your child support ended without having to go to court. Find out if you can just bring the LCSA proof that your child is no longer a minor and has graduated from high school, and that child support should be stopped. If the agency does not agree, you will need to file a motion with the court. If you were the parent ordered to pay support and you now have the child, you will still need to file a motion to either end support or get support from the other parent. If you do not change the court order, the other parent may be able to enforce the order you did not change.

If you owe any back child support, you will have to continue making payments until you pay it off. If there are any other children under the age of 18 from the relationship, you may need to file a motion to change your child support order.

Q: I was never served with any papers. Now the local child support agency says that I owe a lot of back child support. What can I do?

A: If you were never served with any papers, you may be able to have the default and judgment canceled (or “set aside”). But you must act as soon as you find out that there was a default or judgment for support. If you do not act as soon as you find out about the default or judgment for support, the court may refuse to cancel the judgment.

Q: I was served with papers by the local child support agency a long time ago, but I ignored them because I was in prison. Now that I am out, I owe a lot of money. What can I do?

A: You may not be able to cancel (or "set aside") a judgment if you were served correctly. There may be some exceptions, but it is a complicated problem. Contact a family law facilitator or a lawyer for help as soon as possible. Remember: you must act as soon as you find out about the default or judgment! Click for help finding a lawyer.

Getting a court to cancel a judgment is difficult, particularly if the judgment is over 6 months old. If you cannot get the judgment canceled, there are other things you may be able to do. You can file a motion to change the support based on how much money you make. You can also ask the court to set a monthly payment so you can repay what you owe for back support in installments. This is called “arrearage” (back support).

Alert! The child support order will stay in effect even if you have no income or less income unless you ask the court to change the court order. The court will only change a child support amount for future payments, starting from the day you file papers asking for the change. The court will not be able to lower past child support amounts. Any arrearage (back support) will include interest, which is currently 10 percent per year. This can add up to a lot of money.

Q: I owe a lot of back support. The local child support agency had my driver's license suspended. I cannot pay the money they want to get back my license. If I lose my license, I will lose my job. What can I do?

A: You can file a Notice of Motion for Judicial Review of License Denial (Form FL-670). This form asks the court to consider giving you back your license. The court will make the final decision, not the local child support agency.

Q: I did not file an Answer to Complaint or Supplemental Complaint Regarding Parental Obligations. Now the local child support agency takes half of my paycheck for child support. The support is too high. Can I get it lowered?

A: If your judgment for child support was based on a "presumed income," you ONLY have 1 year from the date of the first collection of money by the local child support agency to file a Notice and Motion to Cancel (Set Aside) Support Order Based on Presumed Income (Form FL-640). Read the Information Sheet for Notice and Motion to Cancel (Set Aside) Support Order Based on Presumed Income (Form FL-640-INFO) to learn more and see instructions.

If appropriate given the circumstances of your case, the court may set aside (cancel) the original support order and recalculate the guideline amount based on your actual income, or possibly your income earning ability, for the period of time for which a support judgment was entered.

You cannot use Form FL-640 to say that you are not the child’s parent. If you want to say you are not the child’s parent, talk to the family law facilitator or a lawyer as soon as can. These cases are very complicated. Click for help finding a lawyer.

If your child support order is NOT based on presumed income, talk to the family law facilitator to see if there is any other way to file a motion to cancel (set aside) the judgment. There are some reasons that the court may accept to set aside a judgment, but setting aside judgments is very difficult.

Q: I thought I had paid off the back child support I owed. But I got a bill for interest. Why do I have to pay interest now?

A: Since July 1, 1992, all local child support agencies must charge interest on all back child support. The money that you pay will be applied to current child support first and back child support next. Interest is usually the last charge to be calculated by the agency. Interest is:

10% per year for child support that was due on or after January 1, 1983; and

7% per year for child support that was due before January 1, 1983.

Q: Is my spouse's income going to be counted for child support?

A: In general, the court only uses the parents' income for calculation of child support. However, the court can inquire about your spouse's income for the purpose of determining what effect the spouse's income will have in determining your after-tax income, and in unusual cases, for other purposes.

Q: My employer takes out more out of my paycheck than the child support amount. Where does my money go?

A: Child support money you pay is:

First applied to current support;

Then applied to principal owed for back support; and

Lastly, applied to the interest due on back support.

Q: Why do I have to pay interest on back child support (arrears)? And, how much interest do I have to pay?

A: If the Local Child Support Agency is involved in your case, it is required to charge interest on all past-due child support. Interest is usually the last charge to be calculated by the Department of Child Support Services. The interest it charges is:

10% per year for child support that was due on or after January 1, 1983.

7% per year for child support that was due before January 1, 1983.

Q: Can I discharge the back child support I owe in bankruptcy?

A:NO. Back child support cannot be canceled in a bankruptcy proceeding. Once it is owed, it will always be owed, until paid. You cannot use bankruptcy to get out of having to pay your child support obligation.

Q: What if 1 parent is earning less than he or she can?

A: The court may, after careful consideration, set an income to be used in computing child support that is higher than the parent’s actual income. This might happen:

Or if a parent is not working and could be, the court may set an income amount for that parent.

A parent’s earning capacity is determined based on both the parent's ability and opportunity to work.

If the parent is able to work but is not, the judge may estimate what he or she could earn using his or her work history or other information. If the judge does not have other information to use in estimating a parent's potential earnings, he or she might use the minimum wage amount.

If a parent has no ability or opportunity to work (like if the parent is in jail or disabled), the court cannot assign an income to that parent.

Q: What is “earning capacity”?

A: The court will set an order based on a parent’s "earning capacity" only if 3 factors are satisfied:

The parent must have an ability to work. In determining whether the parent has an ability to work, the court will look at his or her age, education, health, work experience, and other job qualifications.

The court will look at the parent’s willingness to work. Has he or she made a good-faith effort to get a job?

The court will look at whether the parent has an opportunity to work. Is there an employer that will hire him or her?

If the court looks at those 3 factors and determines that the parent should be earning money, it will base the child support order on what the court believes is that parent's earning capacity.

Q: Can the court order a parent to work?

A: If it appears to the court that a parent who could work is not working and not making serious efforts to find work, the court may make a “seek-work” order.

A seek-work order requires a person to actively look for a job. It also requires him or her to keep a record of their job-search activities and report those activities to the court (and to the other parent) at some point in the future (usually at a future hearing). Reports of job-search activities are also to be made to the local child support agency.

Failure to comply with a seek-work order could permit the court to set income for that person and to make an "earning capacity" order.

Even if a parent is not working, the court may order him or her to pay an amount of support consistent with what it believes that parent could earn. This is known as the parent's "earning capacity."

In certain situations, even though a parent has no income, the court will order him or her to pay child support based on his or her earning capacity.

A court may also require a parent to attend job training, job placement, or other work programs.

Q: Can the person who falls behind in support payments go to jail for not paying support?

A: A person who owes support and willfully fails to pay is ignoring a court order to pay support, so he or she can be prosecuted for being in contempt of court and may go to jail. This enforcement tool is generally used as a last resort when all other efforts to collect support have failed. If you are being charged with contempt of court and could face criminal charges, you have the right to a lawyer. If you cannot afford a lawyer, ask the court to appoint one for you.

The cost is presumed to reasonable if the cost to add the children is 5 percent or less of that parent's gross income.

The payments for heath insurance are in addition to the base child support amount.

If you do not think you can afford to pay your medical support order, you can file 2 forms to ask the court to change or end the order:

Request and Notice of Hearing Regarding Health Insurance Assignment (Form FL-478). To see information and instruction for this form, read the Information Sheet and Instructions for request and Notice of Hearing Regarding Health Insurance Assignment (Form FL-478-INFO).AND

If you or your child is in need of access to more affordable health insurance, you may wish to contact Covered California. Covered California can help reduce the cost you pay towards high quality affordable health care. For more information visit www.coveredca.com or call Covered California at 1-800-300-1506

Q: If I give up my parental rights, will I still have to pay child support?

A: Termination of parental rights means that a person is no longer considered to be the parent of the child. If the court terminates a parent's rights, then he or she is no longer responsible for the child.

In general:

The court will usually only order a termination of parental rights if someone else is prepared to adopt the child.

If your child has been removed from 1 of the parents by the court, the court can terminate parental rights in order to free the child up for adoption.

The court will not order a termination of your parental rights if that would leave the child with only 1 parent responsible for his or her care and support.

You are required to provide financial support for your child whether or not you visit the child. Also, if your rights have been terminated, you still owe the child support that was ordered before your rights were terminated.

Q: What if the person ordered to pay support has moved to another state?

A: Every state has an agency to enforce child support orders. States must cooperate with each other to collect both current and back child support and locate parents and their assets. Laws may be different from state to state, but all child support agencies help each other. Federal laws require every state to enact the Uniform Interstate Family Support Act (UIFSA). UIFSA requires states to work together to establish and enforce child support orders from other states.

If the local child support agency is involved with your case, contact them and let them know that the other parent has moved and give them any information you have about the parent’s new address or work

Q: What if I have a child support order and the other parent lives in a different state?

A: If you and the other parent live in different states, you may use the Uniform Interstate Family Support Act (UIFSA) to enforce your child support order.

Trying to enforce child support across state lines is very difficult. You may want to open a case with the local child support agency to help you enforce your order. The local child support agency will work with child support agencies in other states locate and enforce child support for you.

Q: How do I complain about the LCSA?

A: If you think the LCSA is not handling your child support case properly, you may file a complaint with the LCSA. The LCSA has a complaint resolution system to resolve complaints about customer service, timeliness of service, payment and billing issues, and decisions to close a child support case. Complaint forms are available on the California Department of Child Support Services website.

When completing the request form, you must indicate whether you are requesting a certified copy or faxed copy of the paternity declaration. Next, type or print the following information about the child and the parents:

Child’s name (first, middle, and last)

Child’s county of birth

Child’s date of birth

Mother’s name (first, middle, and last)

Mother’s date of birth

Other parent’s name (first, middle, and last)

Other parent’s date of birth

The parent making the request (the requestor) must also type or print the following identifying information:

Requestor’s name

Requestor’s mailing address and telephone number

Fax number (if requesting a faxed copy of the paternity declaration)

The requestor’s relationship to the child

Date of the request

The requestor must sign the request form — any requests not signed will not be processed. Allow 10 working days for your request to be processed.

If you have any questions about how to request a copy of a filed Declaration of Paternity form, please contact the State POP Coordinator at 866-249-0773. Or go to their website for more information.

Q: Can a parentage case be started while the mother is still pregnant, before the baby is born?

A: YES. The mother can open a case with the Department of Child Support Services when she is still pregnant.

If the person the mother believes is the child’s other biological parent denies it, a genetic (DNA) test can be ordered after the baby is born. (Some labs will only perform genetic tests after a child is 6 months of age or older.)

Q: Can I get child support if I am not sure who is the child’s other biological parent?

A: No. Paternity (also known as “parentage”) — a legal determination of who is the child’s other biological parent — must be established before child support can be ordered. Establishing paternity/parentage gives your child many rights, including child support, access to medical records, government benefits, and more. However, you can get CalWORKS without having established parentage.

Q: What if the child’s other biological parent leaves the state before it is proven that this person is actually the child’s other parent?

A: The local court may use information they have to decide parentage without him or her. If parentage is established without the alleged other parent’s cooperation, the court may order him or her to pay child support no matter where the person lives, even if he or she is not in California.

Q: The child’s biological parent does not have any money or a job to support our child. Why should I bother proving that he or she is the child’s other parent?

A: If you do not establish parentage, your child will not be able to get child support or health insurance even after the alleged other parent gets a job. Proving parentage as soon as possible makes collecting child support easier later on.

Q: What is DNA testing?

A: DNA is the biological material that determines a person’s physical characteristics. It is found in almost all of the cells in the body, and each person’s DNA is unique.

Some of a person’s DNA coding is inherited from the mother. Some of the DNA coding is inherited from the father. Therefore, by comparing the DNA coding of a mother, father, and child, their parental relationship can be established.

Samples of a person’s DNA can be taken by gently rubbing a sterile cotton squab (like a Q-tip) inside his or her mouth. Saliva contains DNA, as does the rest of the body.

Q: Do I have to pay for the DNA test?

A:

If the Department of Child Support Services performs the test, normally there is no charge to either named parent.

If the court orders the named parents to get DNA testing, there may be fees of several hundreds of dollars to have the testing done.

The court will NOT accept DNA tests done at home or in a private medical facility as evidence in a parentage case, unless the test has been ordered by the court.

If the court orders DNA testing, it will provide the named parents with the information they need to get the tests done.

Q: What is a “presumed” parent?

A: The law will presume a person is a child’s other parent under the following circumstances (unless proved otherwise to a court). For example, John Doe will be presumed to be the child’s other parent if:

He was married to the child’s mother when the child was conceived or born;

He attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the “marriage";

He married the mother after the birth and agreed either to have his name on the birth certificate or to support the child; or

He welcomed the child into his home and openly acted as if the child was his own. This concept is called “parentage by estoppel” and means that the court can find that a man is the legal father, even if he is not the biological father, if he has always treated the child as his own.

Q: Who must I notify of the parentage case if the other parent is deceased?

A: When one of the parents of a child is deceased and there are (1) no court orders in place about the children AND (2) no pending court cases about custody or guardianship of the child, the law requires that the person filing the parentage case give notice of the case to certain people related to the child. The reason for this law is to make sure that anyone who may have an interest in the children or the case has an opportunity to have a say in the case.

When a parent is deceased, the Summons and the Petition MUST be served on the following people:

the person or persons who have physical custody of the child (the people the child lives with),

and

the children's siblings, half-siblings, and the children's grandparents (on both sides).

And, if the person filing the parentage case is NOT the child's living parent, that parent must be served too, of course.

You must follow these requirements carefully or your case may not move forward.

The papers can be served in person or by mail, or other way the court allows. If you cannot locate any of the people that must be served, let the court know your efforts to contact them and the court will either give you permission to serve them some other way, or will let you move forward without giving notice to the people that cannot be found.

IMPORTANT: If there is any type of court hearing coming up in the case and no orders have been made yet, you MUST serve all these people at least 15 days before the hearing.

Child Abuse and Neglect — Frequently Asked Questions

Q: Where can I find information for foster parents and relative caregivers?

A: Talk to the social worker or child welfare agency. They can tell you more information about where your child is and how the courts work. Get the phone number from your county’s website. Or look in the “County Government” section of your phone book.

Get in touch with the superior court in your county. If you cannot find the phone number or address for the juvenile court, call the court’s main number.

Q: My child is a dependent of the court. Will he or she get a lawyer to represent him or her?

A: Guardianship is not the same as adoption. A guardianship just gives custody of a child to the guardian. Guardianship does not take children away from their parents forever. Parents must continue to support their children financially in a guardianship. And, in a guardianship, children can inherit money or get social security benefits from their parents. The children in a guardianship are still related to their parents. The court can let the parents or relatives visit with the children in a guardianship.

Guardianship can last until the child turns 18. Or the court can end a guardianship and give the child back to the parents or choose a new guardian.

Q: How can guardians get financial help to provide for a child?

A: There are different kinds of financial help a guardian can get:

Welfare: If you are related to the child, you can get welfare even if you do not need the money. You can also get welfare if you are not related to the child but you need financial help.

Foster care payments: Some guardians can get foster care payments. These pay more money than welfare.

Kin-GAP (Kinship Guardianship Assistance Payment Program): You can get Kin-GAP if you are related to a child in a dependency case. This pays the same amount of money as foster care payments.

SSI (Supplemental Security Income): If the child has a disability, he or she may be able to get SSI or state disability benefits. You can use this money to take care of the child.

Medi-Cal: Guardians can get Medi-Cal for the child and for themselves if they are financially needy and are related to the child.

Ask the social worker what help you can get. If you want to adopt the child and the child has special needs, ask about the Adoption Assistance Program.

Note: If the child gets welfare, foster care payments, or Kin-GAP, your county may try to get child support from the parents.

Q: I am a dependent of the court and I'm turning 18. What happens next?

A: If you are a ward or dependent of the juvenile court and are turning 18 on or after January 1, 2012 (or if you are between 18 and 20 and have previously been placed in a foster home), you may be entitled to extended foster care benefits beyond your 18th birthday. These benefits may include money for clothing and housing assistance, medical coverage, job placement services, school tuition and others. To find out if you are eligible, contact your current or former probation officer, social worker or lawyer. You can get more information at: www.fosteringconnections.org/california.

Q: Where can I find more links to information and help for child abuse and neglect cases?

Guardianship - Frequently Asked Questions

A: Yes. You can write a letter naming a guardian for your children and keep it with your important papers or write in your will who you want to be the guardian of your children when you pass away.

But if both parents are dead, the court will decide who the guardian is. The court will try to appoint the person you wanted. But the court will consider what is best for your children and will ask the children what they want.

Q: Can I ask for a guardian for my child if I am dying?

A: If you have an incurable illness, you can ask the court to appoint a joint guardian for your child. (You must have legal custody of the child to do this.) This can make the transition easier when the parent dies. It gives the sick parent the comfort of knowing their child will be safe with the guardian they chose.

If the court approves the joint guardianship, both you and the guardian will act as parents while you are alive. And when you die, the joint guardian will have full custody of the child without another guardianship hearing.

Q: Can a child ask the court for a guardian?

A: Yes. If the child is 12 or older, he or she can ask the court to appoint a guardian. Some counties have agencies that specialize in representing children. Click for help finding one of these agencies.

Q: What if the parents agree to let me care for their child and do not want to go to court?

A: They can sign a notarized letter that says you have "custody" of the child. The letter should give you permission to make decisions about the child's education and medical care. It is also a good idea to get a medical release for emergencies.

Remember: The parents can cancel this agreement at any time.

Q: What if the parents are not available to sign an agreement with me?

A: If the parents are not available to sign a private agreement, you can fill out a Caregiver's Authorization Affidavit, as long as the child remains in California. It does not need to be signed by the parents. Once you fill it out, have it notarized.

If the person taking care of the child is a relative of the child, this form lets him or her enroll the child in school. It also gives the relative the same rights as a guardian to get medical care, including mental health treatment, for the child. The back of the affidavit has a list of which relatives qualify under this law.

If the person taking care of the child is NOT a relative, this form still lets him or her enroll the child in school, but they are only authorized to make medical care decisions that are school related (like immunizations or physical exams required by the school for enrollment).

The Caregiver's Authorization Affidavit is not an official court form.

The parents do not have to sign the Caregiver's Authorization Affidavit but they can cancel the affidavit at any time.

If the child is no longer living with the caregiver, the affidavit is not valid. The caregiver must notify the school and health care provider if the child is no longer living with him or her.

Q: Can I meet all the child's needs with the Caregiver's Authorization Affidavit or a notarized letter from the parents?

A: Maybe not. Here is why:

Schools and medical facilities are required by law to accept the Caregiver’s Authorization Affidavit, but it is possible you may come across a lot of resistance and may decide that it is easier to go to court and get a court order giving you legal guardianship.

The parents can cancel these forms or a letter at any time and take the child, even if it is not safe for the child.

It may be hard for you to get medical insurance for the child unless you are the legal guardian.

Q: What if I do not know where the parents or relatives are?

A: Try to find the parents or relatives by:

Asking all family members and friends;

Looking in phone books;

Calling telephone information; or

Doing anything else you think could help you find them.

Courts have different requirements about what you need to do to find any missing relatives or the parents. Make sure you check with your local court so that you take all the necessary steps. Get more tips on what you can do to find someone.

Once you do everything you need to find the parents or relatives and you still cannot find them, you have to ask the court for permission to continue your case without giving notice to the missing relatives or parents.

Q: What if a parent is out-of-state or in another country?

A: You must still get a server at least 18 years old—NOT you—to personally hand a copy of the court papers you filed to the parent at least 15 days before the court hearing.

If the server was not able to personally serve the parent, you must ask the court for permission to serve by mail.

If the judge signs the order giving you permission to serve by mail, you can have someone—NOT you—serve the parent by mail.

If you do not know if a person is in state or federal prison or county jail, search for the person in state and federal prison and the counties where you think the person might be incarcerated.

Q: Can I move outside California with the child?

A: No. You cannot move the child out of California unless you first get permission from the court. If the court agrees, you must establish guardianship in the state you move to. Different states have different rules. Find out what the rules are in the state you want to move to.

Q: What is a blocked account?

A: A blocked account is when a bank, brokerage firm, or other financial institution says no withdrawals can be made without a court order. Often, an account will stay blocked until the child turns 18.

Q: Where can I find more information about guardianships?

A: There are several informational court forms, publications and self-help books that can give you more information about guardianships. Here are a few:

Juvenile Delinquency — Frequently Asked Questions

Q: My child was arrested and taken away from me. Where will he or she go?

A: If your child was arrested and taken away from you:

Your child can be put on probation. He or she may have to live in with a relative, in a foster home or group home, or in an institution.

Your child can be put on probation and sent to a probation camp or ranch.

Your child can be sent to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (also called “DJJ”). If your child is tried in adult court, he or she will be sent to the Department of Corrections and Rehabilitation, Division of Adult Operations (also called “CDCR”).

If your child is sent to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), he or she will go to a “reception center” for the first 30 to 90 days. The center will find out what education and treatment your child needs. Then your child will go a correctional facility or youth camp.

A: Sometimes. Not all records can be sealed. Your child can file a petition to have the records sealed after he or she turns 18. Or you can file a petition 5 or 6 years after the case is over.

If the court approves the petition, all records of the case and the arrest will be sealed. Get help from your child’s lawyer or probation officer.

Q: Can a juvenile court record be used against my child as an adult?

A: The three-strikes law says that some serious or violent crimes can count as strikes in the future. This can happen even if the records are sealed.

Q: Will my child be tried in adult court?

A: A child who is 14 years old can be tried in adult court for some serious crimes.

Here are some examples:

Murder and attempted murder,

Setting fire to a building with people in it,

Robbery with a weapon,

Rape,

Kidnapping or carjacking,

Crimes with guns,

Drug crimes, and

Escaping from a juvenile detention facility.

There are big differences between juvenile court and adult court. If the state wants to try your child as an adult, talk to a lawyer about what can happen.

Q: Will my child go to the Department of Corrections and Rehabilitation, Division of Adult Operations (CDCR) instead of the Division of Juvenile Justice (DJJ)?

A: Your child can only be sent to adult prison (CDCR) if he or she is tried in adult court. If your child is tried in adult court, talk to a lawyer.

Even if your child is sentenced to adult prison, he or she will stay at the DJJ until he or she is at least 16.

If your child is at least 16, the judge can send him or her directly to adult prison. Or if your child’s sentence ends before he or she turns 21, the judge can let him or her stay at the DJJ the whole time. If the sentence is longer, your child will go to the CDCR on his or her 18th birthday.

Q: Am I financially responsible for my child's behavior?

A: Yes. You may have to pay the victim if the court orders “restitution.” Restitution is money to compensate for losses or damage caused by your child. For example, you may have to pay for what your child stole, or for the victim’s medical bills or lost wages.

Q: Will I have to pay my child’s fees?

A: Yes. Unless you are the victim, you will get a bill and must pay for:

Your child’s lawyer;

Juvenile hall services, like food and laundry; and

Fees to keep your child with the Department of Corrections and Rehabilitation, Division of Juvenile Justice, a probation camp, a group home, institution or in foster care.

This can be expensive. You can talk to the court about your financial ability to pay these fees and costs.

Q: How do I find out about a particular juvenile or family court trial or case, past or current?

A: If the case is in juvenile court, the file is confidential. Certain parties directly connected to the case may have access to a juvenile court file. In certain circumstances, the court may order access to a juvenile court file. If the case is in family court, the file is not confidential and can be obtained through the court clerk’s office.

Q: What are the rights and role of victims in the juvenile court process?

Adoption — Frequently Asked Questions

Q: How can I get copies of my adoption documents that were filed in a California court?

A: Adoption files are confidential and are available to the adult adoptee, adoptive parents, and their attorneys. You may file a petition with the court clerk to ask the court for permission to obtain copies from the adoption file. Contact the court where the adoption was granted. Find your court and their contact information.

A: “Birth parent” usually means the biological parent. It can also mean the other parent when a couple has a child together legally (like same-sex couples or heterosexual couples that use artificial insemination using a donor).

Q: Does the child have to agree to the adoption?

A: If the child is 12 or older, he or she must agree to the adoption before the judge will order the adoption. Children under 12 do not have to agree.

Q: What if my child only has 1 birth parent?

A: Unless your child was conceived through artificial insemination with an anonymous donor, your child most likely has another parent.

If your child was conceived through artificial insemination with a known donor and that donor’s parental rights were not ended legally, the donor could be considered to be a birth parent.

Q: What if my child’s other birth parent is deceased?

A: Tell the judge in your Adoption Request (Form ADOPT-200 | video instructions) and at your court hearing. You will need to give the judge some type of proof, like a certified copy of a death certificate.

Q: What if my child’s other birth parent does not admit that he or she is the child’s parent?

A: Cases where parentage/paternity is contested are very complicated. Talk to a lawyer. For help finding a lawyer.

Q: I am not sure who my child’s other birth parent is. What should I do?

A: If you are not sure who your child’s other birth parent is (like if there could be 2 fathers, or if 1 man is the biological father but another man raised your child for years), talk to a lawyer. Click for help finding a lawyer.

Q: What if my child was conceived through artificial insemination with an anonymous donor?

A: If your child was conceived through artificial insemination with an anonymous donor, and you were the only person involved in the entire process, the only person to sign the sperm bank and hospital records, and you were not married or with a domestic partner, then you probably do not need to get anyone else’s consent. But talk to a lawyer to make sure. The judge may ask for a letter from the doctor or sperm bank confirming you did the artificial insemination on your own.

Q: If I am the only parent listed on the birth certificate for my child, do I still need the consent of the other parent?

A: Yes.

Even if you do not know who or where your child’s other parent is, you will have to try to find him or her and get their consent or get a court order ending the other parent’s parental rights.

Talk to a lawyer to make sure you know what the legal rights of the other parent are in your case. Then you will know what you must do to complete the adoption legally. For help finding a lawyer.

Exception: If your child was conceived through artificial insemination with an anonymous donor, and you were the only person involved in the entire process, the only person to sign the sperm bank and hospital records, and you were not married or with a domestic partner, then you probably do not need to get anyone else’s consent. But talk to a lawyer to make sure. The judge may ask for a letter from the doctor or sperm bank confirming you did the artificial insemination on your own.

Q: What happens if I do not really look for the other birth parent, and the other birth parent shows up later to undo the adoption?

A: The other parent, once he or she finds out about the adoption, can go to court, give the judge proof that you did not do everything the law requires you to do, and try to have the adoption canceled. That is why it is very important that you follow each step and make sure that the adoption is done right.

Q: What if my child’s other birth parent does not agree (consent) to the stepparent/domestic partner adoption?

A: In most cases, you cannot ask for a stepparent or domestic partner adoption if the child’s other birth parent does not agree to the adoption.

But, in a very few cases, like when the other birth parent has abandoned the child for over a year and has not paid any child support or seen or talked to the child, you can ask for stepparent adoption.

To do this, you have to properly serve the other birth parent with the adoption notice and the other birth parent will have to show up on the court date and object to the adoption. The judge will make the final decision based on the best interest of the child. These cases are complicated. Talk to a lawyer to make sure you follow the right steps. Click for help finding a lawyer.

Q: How can I get affordable health care for my adopted child?

A: If you need access to more affordable health insurance for your adopted child, contact Covered California. Covered Californiacan help reduce the cost you pay towards high quality affordable health care for yourself and members of your family. For more information visit www.coveredca.com or call 1-800-300-1506.

Emancipation — Frequently Asked Questions

Q: Is emancipation forever?

A: Usually, yes. But the court can cancel your emancipation if you lie to the court or if you cannot support yourself anymore.

Q: Is emancipation my only choice if I do not want to live with my parents any more?

A: No. If you do not want to live with your parents you can:

Get counseling or mediation with your parents;

Go to live with another adult (like an aunt, uncle, grandparent, or family friend);

Special Education - Frequently Asked Questions

Q: What if my child hurts himself, hurts others, or is destructive?

A: This behavior can get in the way of your child’s learning and individualized education program (IEP) goals. The local educational agency (LEA) will make a “behavior intervention plan” to help children who hurt themselves or other people, break things, or act out in class.

The plan is supposed to help the student change the behavior. It must be added to your child’s IEP. After your child has a behavior intervention plan, problem behavior will be considered part of the disability and must be addressed by the behavior intervention plan. If that does not work, a new IEP meeting should be called to write new goals, obtain new assessments, or discuss alternative placement.

Q: What if my child is suspended from school?

A:. The principal of your child's school will follow the California Education Code to decide if a student should be suspended. (A teacher is able to send a student out of the class, but only the principal can send the student home.)

Special education students can be suspended just like regular students. But they cannot be suspended for more than 10 days, no matter what the reason for the suspension is, without holding an IEP meeting or being referred for expulsion. The 10 days can be 10 days in a row (consecutive) or a few days at a time adding up to 10 days during the school year. After 10 days, FAPE must be provided to the student.

Q: What if my child is expelled from school?

A: California Education Code section 48915 says what things your child can be expelled for doing, such as bringing a weapon or drugs to school. Your child can be expelled or suspended for some of the same things.

A school principal may refer a student for expulsion, but does not have the authority to expel, only to suspend the student. Only a school board may expel a student.

A special education student cannot be recommended for expulsion until the student has a pre-expulsion assessment, which is called a “manifestation determination” IEP.

Q: Who is part of the manifestation determination IEP (pre-expulsion assessment)?

A: The IEP team has an IEP meeting. The team decides if the student should be expelled. Parents are also part of the pre-expulsion assessment meeting.

Q: What does the IEP team look at in the manifestation determination IEP (pre-expulsion assessment meeting)?

A: The IEP team reviews the goals, services, and placement to decide if the child has had the right services such as a behavior plan, and whether the placement was right when the student misbehaved. They will also look at how the child’s actions are connected to his or her disability. The team has to decide if the behavior was caused by the disability. This is called a “manifestation determination.”

Q: What if I do not agree with what the IEP team decides?

A: If you disagree with the team’s decision about placement, the manifestation determination, or with certain information that the team based its decision on, you can ask for an “administrative due process hearing.” If your child is being referred for expulsion for behavior that you believe is related to the disability, then you may also request an expedited due process hearing.Write or fax your due process request to the Office of Administrative Hearings at:

Q: What if the team decides that my child's disability did NOT cause the bad behavior?

A: If the team decides that the disability did not cause the bad behavior, and that your child had the right educational placement, your child will be disciplined like any other student, including suspension. Your child can be referred for expulsion and can even be expelled if the local school board decides to expel him or her.

Q: What if the team decides that my child's disability caused the bad behavior?

A: Your child cannot be expelled if his or her disability caused the bad behavior or if he or she did not have the right educational placement when the misbehavior occurred. The IEP team should meet to change the IEP and may have new assessments, provide different services, and change placement.

Q: What if my child is not eligible for special education yet?

A: You may still be able to get special protection if your child misbehaves.

If the local educational agency (LEA) knew about your child’s disability before he or she misbehaved, you can get protection for your child from them.

The LEA knew about the disability if:

A parent asked for an assessment or wrote a letter saying he or she was worried about a disability,

The behavior proves that the child needs special education, or

The child's teacher or someone who works for LEA told the director of special education or other personnel that he or she was worried about the child's behavior.